Property owners that fail to secure equipment or certain conditions on site that would be both dangerous and attractive to children can be found liable for any ensuing injuries under the grounds of the attractive nuisance doctrine.

Some of the more common examples of attractive nuisance liability are unprotected swimming pools, abandoned vehicles or open pits.

In Florida, this liability is not limitless, per Florida Statute 768.075. The law holds that a property owner can’t be held liable for civil damages relating to death or injury of a person who was trespassing and also drunk or under the influence of drugs or committing a felony.

However, a property owner can be found negligent when he or she engages in intentional misconduct relative to undiscovered trespassers or gross negligence relative to discovered trespassers or invitees. In the latter case, property owners have a duty to warn those on the property of dangerous conditions that aren’t readily observable.

Our Fort Myers child injury lawyers recognize that case law varies from state-to-state, but a recent attractive nuisance claim reviewed by the Colorado Supreme Court was a good example of how the common law principle can be applied. The case of S.W. ex rel. Wacker v. Tower Boat Club Inc. involved product liability resulting in child injury, but also raised the question of whether a claim of negligence by attractive nuisance could be brought against a property owner on behalf of a child who had been invited to that property.

The case unfolded in the summer of 2008, when an 11-year-old attended a private party at a boat club with one of the club’s member families. The child and two others were playing on an inflatable bungee run that had been rented for the party when a strong wind moved the structure some 75 feet in the air before sending it crashing back to the ground.

The 11-year-old suffered severe traumatic brain injuries, hemorrhaging of the brain and fractures to his left leg and right arm.

The boy’s parents sued the boat club, the manufacturer of the bungee run and the land owner. They would later settle their claims out-of-court with the land owner and manufacturer. However, they continued to press forward in court on their claim against the boat club, alleging premise liability, negligence and attractive nuisance.

The boat club moved for a summary judgment. The trial court granted this request on the claims of negligence and premise liability, finding that because the child was a licensee, the boat club didn’t breach any duty owed to him. However, the court denied a summary judgment on the attractive nuisance claim, though it later reversed that stance upon reconsideration prompted by the defendant. The court reasoned that attractive nuisance claims could only be brought by children who were trespassers – not licensees.

The boy’s parents appealed, arguing that child licensees could bring attractive nuisance claims per common law and that barring them from doing so was a violation of their son’s constitutional rights to equal protection. While the appellate court confirmed the earlier ruling, the state supreme court would ultimately reverse it.

The court noted that in that state, there are three classifications of individuals on another’s land: trespassers, licensees or invitees, and the extent to which any of these persons are able to recover damages from a landowner hinges on this standing.

The state statute is very specific in saying that none of the language should be taken to abrogate the attractive nuisance doctrine as it’s applied to children under the age of 14.

While these cases normally involve child trespassers, the court found, they can’t solely be limited to trespassers. The whole idea is that children, because of their age, lack of experience and impulsive behavior may be instinctively drawn to things that are inherently dangerous. The common law application of the attractive nuisance doctrine is to protect all children from these kinds of attractions on property, whether they are there as trespassers or because they were invited.

There is no prerequisite that a child must be a trespasser in order for the protection to apply.

If your child has been injured in Fort Myers, contact the Hollander Law Firm at 888-751-7770 for a free and confidential consultation.